1. This rule raises the question; can a cosharer who is not in any way a party to the suit or execution proceedings in which a share of a tank has been sold in execution make an application under Order 21, Rule 89, Civil P. C. The trial Court has decided that he can ; the lower appellate Court relying on an incorrect version of Rule 89 as in force in West Bengal, has decided that he cannot.
2. The tank in question was part of the joint property of three brothers, one of whom is the depositor under Rule 89 and another the deceased father of the judgment debtors. The other joint properties of the brothers were partitioned, the tank remaining joint. The sale was held in execution of a money-decree.
3. Authority on the question is curiously meagre, no case of this Court directly in point had been cited before me. It was considered in Bisheshar Kuar v. Hari Singh, 5 ALL 42: (1882 A. W. N. 146) in 1882 under the provisions of the Old Code, but in relation to Section 311 or Order 21, Rule 90 as it then stood. The cosharer there had actually made a bid at the sale and relied in his application under Order 21, Rule 90 (Section 311) on Order 21, Rule 88 (Section 310). His application was rejected on the ground that he was not 'either the decree-holder or a person whose immovable property had been sold.' The decision is not of assistance in interpreting the present Rule 89 (as introduced in 1933) ''any person, whose interest is affected by such sale,' or the similar words of Rule 90 'any person. . . . whose interests are affected by the sale.'
4. In Ramchandra v. Srinivasa : AIR1928Mad899 it was held that the cosharer was a 'person holding an interest in the property sold,' as every member of an undivided family has an interest in joint family property, that is to say, not the share of each, but the whole corpus of the property. The case was one under Rule 89, Jackson J. remarking that if one brother chose to pay another brother's debts rather than see the ancestral property pass to stranger (a transaction which may easily involve the family in discredit and inconvenience) there is no objection to his doing so. The decision was not under the wider terms of Rule 89 as in force here.
5. A cosharer is given a right under Order 21, Rule 88 to have priority if he makes an equal bid with a stranger. (It is true the right seems not to be one of much substance). This surely recognises that he has some interest in the sale, if not 'in the property sold' in the strictest meaning of the term. But Rule 89 does not specifically require the depositor's interest' that is affected is to be strictly in the property sold. The rule has been amended to give a wider application. It seems anomalous to suggest then that if a cosharer fails to take advantage of Rule 88 (or misses an opportunity to do so through no fault of his own) he should not be able to take advantage of Rule 89 to protect the same interest as is apparently intended to be protected (however inadequately) by Rule 89. On the plain meaning of the words now used, it seems to me clear that a cosharer is certainly a person whose interest is affected by the case and he is entitled to apply under Rule 89. If the sale happens to be a share of an occupancy holding his interest is now recognised to the extent that he is given a right of pre-emption under Section 26F, Bengal Tenancy Act.
6. In Kunjolal v. Idurali 0043/1926 : AIR1927Cal82 relied on by the opposite party in this rule, there are some remarks which appear opposed to the above view, but examination of the case shows that the present point was not really in issue. The facts are not very clearly stated in the judgments delivered, but I have referred to the original records, which show that the defendants were cosharers as heirs of the original holder Hanif. They also claimed to have purchased the share of Keshab one of the sons of Hanif from Keshab's daughters. The suit was for partition the plaintiff's claiming to have purchased the share of Keshab by a kobala, and the share of Sabdan, another son of Hanif, in execution of a decree against him. The plaintiffs failed so far as the alleged purchase of Keshab's share by kobala was concerned, but succeeded in respect of the share of Sabdan. The argument put forward for the plaintiff appellants as regards the share of Sabdan was that: 'the only person who could raise the question (as to the irregularity of the sale) would be either the decree-bolder or a person whose interest was affected by the sale, that these persons could only raise the question under the provision of Order 21, Rule 90, Civil P. C.' Gaming J. remarked on this :
' This contention, I think, is correct. So far as regards the third party it is not open to them to challenge I the validity of the sale. It is not contended for the respondents that the sale was void. The irregularities of which they complain were admittedly irregularities which might or might not render the sale voidable. But it would be voidable only at the instance of the judgment-debtor whose interests were affected by the sale (sic) and the judgment-debtor alone could get the sale set aside if he succeeded is proving that he had sustained substantial loss by reason of the irregularities. To succeed in their defence, the respondents must be able to set aside the sale. If they cannot set aside the sale the title of the plaintiff's is perfectly good title.'
He, therefore, held that the defendants could not raise the defence that the sale was not valid. Page J. agreed, but added a comment suggesting that he was of opinion that the defendants had acquired their interest as co-sharers by purchase after the execution sale. In fact this was not so. It was their purchase of Keshab's share (which the plaintiff also claimed to have acquired by Kobala) which took place of the execution sale of Sabdan's share, they were already co-sharers as heirs of Hanif.
7. The argument put forth was clearly sound but it was entirely unnecessary to hold that the defendants could not have made an application under Order 21, Rule 90. The' only question for decision was whether an execution sale could be set aside by the suit (or more strictly by way of defence in a partition suit). The basis of the decision is that no one can do this; it is immaterial whether the person seeking to do it is one who might have succeeded in an application under Order 21, Rule 90. The position is clear. A third party whose interest is not affected by the sale cannot challenge the sale either under Order 21, Rule 90, or by suit. Certain persons can challenge the sale under Order 21, Rule 90 but not by suit. When the question is whether the sale can be challenged by way of suit, it is immaterial therefore whether the challenger could have challenged it under Order 21, Rule 90 or not. It is possible perhaps to read into the remarks of Cuming J. an expression of opinion that the defendants as co-sharers could not have challenged the sale under o. 21, Rule 90, but the opinion is not clearly expressed, and was quite unnecessary to the main decision, namely, that they could not challenge it by way (?) of defence in the partition suit.
8. Page J. twice stated that the defendants were not persons competent to apply to have the sale set aside under Order 21, Rule 90 but gave as his reason that they were persons 'who acquired an interest in the property after the sale had become absolute and the sale certificate had been issued',a reason which I think is not supported by the actual facts, but makes the decision no authority on the question of the rights of a co-sharer who had acquired or inherited his interest before the execution sale.
9. This case, therefore, is no authority conflicting with the view I have expressed above.
10. In Kanhairam v. Kalicharan A. I. R. (13) 1926 Nag 63 : (91 I. C. 218), the position of co sharers in a partition suit with reference to an execution sale against a co sharer came also into consideration. There the argument put forward was in the opposite form, namely, that because the co-sharer could have applied under Order 21, Rule 90 he was not entitled to raise the question of the validity of the sale in the partition suit. The case is not of any real assistance in the present matter as in effect the co-sharer did not seek to have the execution sale set aside. The execution sale was in respect of a decree against the plaintiff's brother Karu, and purported only to sell Karu's interest, but described his interest as being the whole house in which the plaintiff's brother claimed a share. The plaintiff was allowed to establish that he had such share.
11. The circumstances in Mehdni Prasad Singh v. Nand Keshwar Prasad Singh, 2 pat. 886 : (A. I. R. (10) 1923 Pat. 451) were somewhat similar. The shares of plaintiff's 1 and 2, co-sharer in a Mitakshara family had been sold in execution. They had failed in an application under Order 21, Rule 90. Then they along with plaintiff 3, their brother and plaintiff 4, son of plaintiff 1, brought a suit apparently in form for setting aside the sale. The Subordinate Judge held that as plaintiff 3 could have applied under Order 21, Rule 90 and had not done so he could not bring a suit. The High Court held that if the property was joint (and not separate as the defendants claimed), there would not be a decree setting aside the sale, but a decree should be made in a particular form defining the position of the defendants as purchasers in execution of a share of a Mitakshara joint family, and giving plaintiff 3 a right of possession.
12. Except that the cases have some discussion of the position of co sharers in relation to execution sales in particular circumstances they are not of much assistance in the present matter.
13. For the petitioner I have also been referred to two cases in which it is contended that a broad interpretation of the phrase 'whose interests are affected' have been taken. Mundrika Sing v. Nand Lal Singh, A. I. R. (28) 1941 Pat. 204: (191 I. C. 689) and Kamiruddin Khan v. Sachidananda Jana, A. I. R. (35) 1948 pat. 66 : (13 Cut L. T. 25). These lend some support to the view I have expressed.
14. I hold therefore that the learned munsif was correct in his view that the applicant before him was entitled to make a deposit under Order 21, R. 89. I therefore make the rule absolute setting aside the order of the learned District Judge, and restoring that of the trial Court. I make no order as to costs.